Guest guest Posted March 7, 2012 Report Share Posted March 7, 2012 OR DCs,...from MedScape http://www.medscape.com/viewarticle/759163?moneymed_ushc This author has a very different interpretation in regard to the IME/Pt relationship. A. Simpson, DC | Vice President, Medical DirectorThe CHP Group | Smart Solutions. Healthy Results. Like us on Facebook | Follow us on Twitter | Follow us on LinkedIn | www.chpgroup.com csimpson@... 503-619-2041 O | 503-367-0872 C6600 SW 105th Ave, Ste 115 | Beaverton, OR 97008 www.medscape.com Is This a Real Doctor-Patient Relationship? Francis, MD, JD Posted: 03/01/2012 IntroductionYou know you're responsible for your patient's care -- at least as far as malpractice is concerned -- but sometimes physicians can be sued and held liable even when they thought that they did not have a relationship with the patient. Determining whether a doctor-patient relationship exists is an important issue in medical malpractice cases. If there is no relationship, there can be no malpractice. The existence of the relationship is a question of fact specific to each individual case. Courts traditionally look at many factors, including: Was there a contract between the doctor and patient; was a history and physical examination done; was a note generated; was there a bill for services; was a specific opinion rendered; was there any positive action taken by the physician to provide care for the patient; and was the case discussed in general or hypothetical terms, or in specifics? Although most cases are clear-cut, here are some situations in which the territory is more nebulous. Third-Party Opinions A doctor is often hired by a third party to give an independent opinion about a patient. Examples would be preemployment physical examinations; insurance examinations; and independent evaluations for lawyers in personal injury and worker's compensation cases, and for various state and federal agencies. No doctor-patient relationship is formed in these situations. However, if a serious or life-threatening condition is discovered, the physician has a legal duty to report it to the patient -- even if the employer doesn't require it. Failure to report a life-threatening condition can be considered gross negligence. In an Arizona case, Dr. McCarver, a radiologist, was held liable for failing to notify a patient of the presence of a suspicious lesion on a preemployment chest radiograph. McCarver was screening for tuberculosis. He recorded the finding of the lung lesion in his report to the company but did not notify the patient directly. The patient was diagnosed with lung cancer 10 months later and successfully sued McCarver. Telephone and Internet Consultations It is becoming more common in some areas for physicians to do telephone and videoconference consults. If a physician gives advice online or over the phone, the same rules apply. The court will look at the individual facts to determine whether a doctor-patient relationship was formed. If the doctor phones an established patient, the relationship is presumed to be established. Similarly, if a doctor discusses a case with a patient via videoconferencing (through Skype, for example), a doctor-patient relationship has been established. For example, if a university physician holds a videoconference with a remote doctor who presents a patient, and the university physician asks questions and gives treatment advice, a doctor-patient relationship has been established. Discussing cases in a general manner with people online is a trickier situation. Giving generic information about diseases or treatments probably isn't enough to establish a doctor-patient relationship. However, there are times when drawing the line is questionable. For example, a physician gives generic information about a disease to an anonymous poster on a blog. No relationship has been established. If the physician recommends that the patient schedule an appointment with that physician's office, a relationship has been formed. If a patient schedules an appointment with a doctor's office, a relationship has been formed. What courts seem to use as the determining factor is whether the physician has taken some affirmative action to be involved in a patient's medical care. Situations That Create a Relationship Taking Call for a PartnerA physician who takes call for a colleague assumes full responsibility for all the covered physician's doctor-patient relationships. As a result, the covered patients now belong to the covering physician and are legally indistinguishable from the physician's own patients. The covering physician may have never seen, examined, or treated any of the patients being covered. The physician is nonetheless in a doctor-patient relationship with them. It can be argued that no relationship exists if the patient is new to the practice or has not been seen for a long time. However, the use of the telephone to conduct a history or give medical advice establishes the relationship. A physician covering for residents and medical students likewise has a doctor-patient relationship with the patients involved, whether or not there has been any contact with the patient. The same can be said for doctors sponsoring nurse practitioners and physician assistants. Physician Curbside Consult Under traditional medical malpractice theories, liability would not be imposed for so-called " curbside consultations. " Curbside consultations are informal, generally hypothetical, consultations about patient care between physicians during routine conversation in a hallway or doctor's lounge. Such consultations can also occur in social settings, in academic conferences, or on grand rounds. In general, the patient does not know that the consultation has occurred, nor does the consulting physician know of the actual existence of the patient. These consultations occur between physicians who regularly consult with one another and who use one another as a medical resource like a textbook or treatise. In those cases, the argument against imposing a duty based on a physician-patient relationship is that it would chill the exchange of medical information between medical professionals and do more harm than good for patients. The Oklahoma case of Dr. Schlinke, an obstetrician/gynecologist, typifies the curbside consult. A doctor asked Dr. Schlinke for an opinion about induction of labor for a patient. Schlinke was later named as a defendant in a malpractice suit on the basis of the conversation. There had been no request for a formal consult, and Dr. Schlinke never talked to or examined the patient, did not charge, and did not provide or attempt to provide medical care or treatment. Finally, he did not look at the medical chart. The case against him was dismissed because no doctor-patient relationship had been formed. Patient Curbside Consult Most doctors have at some point been waylaid in the supermarket, at a neighborhood barbecue, or at the movie theater by an acquaintance and asked a medical question. What is your liability for answering the question? In general, a doctor-patient relationship is formed if a partial history is taken and medical advice has been given. However, in order to be successfully sued, the advice has to be deemed substandard by expert testimony later on. So, while this scenario may seem -- and could potentially be -- dangerous, it usually isn't. Situations in Which You Won't Be Held Liable Good Samaritan StatutesMany states have enacted Good Samaritan statues. These do not address the question of the formation of a doctor-patient relationship. Rather, they provide an element of immunity from acts of ordinary, but not gross, negligence. A physician who acts in good faith has formed a doctor-patient relationship but is most often immune from liability. Emergency Department Coverage The act of being on call for an emergency department (ED) brings the Emergency Medical Treatment and Active Labor Act (EMTALA) into effect and adds a legal obligation. Under EMTALA, an ED and its on-call physicians owe a duty of care to any person who presents with an emergency. Because of EMTALA, an interaction between an ED physician and an on-call physician regarding a patient who is in the ED is not considered a curbside consult. However, not all ED phone calls result in the formation of a doctor-patient relationship. In the Texas case of Dr. Holland St. who was an internal medicine specialist on call for the ED, the court found that no doctor-patient relationship had been formed on the basis of a phone consultation. A patient who had recently undergone spinal surgery and epidural injections presented with a high leukocyte count and delirium. The ED physician diagnosed lower back pain and acute psychosis. Dr. St. was called and informed of the situation. He recommended transfer to the hospital where the surgery had been performed. The next day, meningitis was diagnosed, and the patient had permanent impairment. The subsequent malpractice lawsuit against Dr. St. was dismissed because no doctor-patient relationship had been established. Visiting Professor Many physicians will on occasion lecture at another institution. Physician audience members present cases for discussion. The visiting professor gives an opinion. Has a doctor-patient relationship been formed? The answer is no. However, if the visiting professor examines a patient, orders tests or writes a note, there is the appearance of the creation of a doctor-patient relationship. Still, a lawsuit in such a case is extremely rare. The California case of UCLA Medical School gastroenterologist Dr. Morton I. Grossman is illustrative. He was invited to lecture to a group of physicians. Various cases were presented for discussion, including one of ulcerative colitis. Dr. Grossman gave an opinion that in such a case, surgery was indicated. The treating physician made his recommendation to the plaintiff, and surgery followed. Later, the patient sued Dr. Grossman for negligence. However, the court ruled that no doctor-patient relationship had been established and dismissed the case. Conclusion The rules concerning the establishment of a doctor-patient relationship are based on common sense. If there is some positive action toward furthering the diagnosis and treatment of the patient, the relationship probably exists. If the case is discussed in a generic or hypothetical way, there is probably no relationship. Also, the advice has to be shown to be substandard on the basis of expert testimony at a later time in order for there to be a successful suit. In general, there is usually little to fear in these situations. Medscape Business of Medicine © 2012 WebMD, LLC Quote Link to comment Share on other sites More sharing options...
Recommended Posts
Join the conversation
You are posting as a guest. If you have an account, sign in now to post with your account.
Note: Your post will require moderator approval before it will be visible.